Mediation

"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them that the nominal winner is often a real loser-
in fees, expenses and waste of time." --- ABRAHAM LINCOLN

Benefits of resolving a dispute through mediation

Eliminates future litigation costs

Avoids delays occasioned by litigation

Promotes problem solving collaboration between the parties

Enables the parties to reach a mutually agreeable resolution of their dispute

Avoids the uncertainty in outcome inherent in formal adjudication

Introduction

This guide will help answer your questions about mediation services provided by DEC's Office of Hearings and Mediation Services (OHMS). This guide does not distinguish between disputes involving enforcement or permit matters; rather, its purpose is to answer some common questions about the use of mediation in environmental matters that commonly come before the DEC.

What is Mediation?

Mediation is an assisted negotiation. It involves using a neutral party to help disputants negotiate a mutually agreeable settlement. The mediator does not render a decision, but assists the parties in reaching their own decision. Mediation is consensual, which means that the parties must mutually agree to mediation.

Why should I consent to mediation?

Mediation allows you to negotiate an agreement with the Department empowering you to decide issues based upon your interests and values without a third party deciding the issues for you.

What happens in mediation?

The mediator becomes the communication link between the parties, serving to assist the parties in reaching a mutually acceptable solution. The mediator will initially meet with you to discuss the mediation process. The mediator will seek to identify with the disputants the central issues that need to be understood, and seek to prioritize and focus on them. The mediator may meet with you privately to discern the underlying facts or issues surrounding the dispute. These private meetings are called caucuses. Caucuses are confidential. The mediator cannot reveal the information learned in the caucus unless released by you to do so. Caucuses allow the mediator to better understand obstacles to a negotiated settlement. Caucuses give you the opportunity to explain what you really want from the negotiation. The mediator may convene a number of meetings and caucuses throughout the negotiation. During a caucus, the mediator may raise doubts about the validity of a position. This process is called neutral evaluation and involves evaluating the merits of a party's case. The main thrust is to provide information to the disputants to let them know how their facts and evidence may be viewed should their dispute proceed to an adjudicatory hearing. The mediator may help create alternative agreements and understandings to help resolve the dispute.

Should agreements reached through mediation be in writing?

Yes. Written agreements state the specifics of what was agreed upon. Who-will-do-what-by-when is a typical arrangement included in the written mediated agreement. The written agreement is a contract.

Is the written settlement agreement binding?

Yes. A settlement reached through mediation, and set forth in an agreement, permit or formal order, is binding. Whether it is an agreement, a formal order, order on consent, or a decision of DEC that relates to permitting or an enforcement action, you will be liable if you fail to abide by its terms. The settlement is enforceable through an administrative proceeding or a court action.

How do I request mediation services?

The preferable way is to contact the DEC Regional Attorney and express your interest in mediating your dispute. The Regional Attorney will confer with the Regional Director, program Division Director and/or other appropriate DEC staff and determine if the Department consents to the mediation. If DEC consents to mediate the matter, it will be scheduled for an upcoming Regional calendar call. The calendar call is a forum regularly convened in the Regions where various matters are scheduled and heard, including mediations. The calendar call is presided over by an Administrative Law Judge (ALJ) who will also act as mediator in your dispute. Alternatively, you can also make the request for mediation directly to the Director of Mediation of the OHMS. However, OHMS will not act independently to begin a mediation without the mutual consent of Department staff or other necessary parties. At the end of this Guide is a list of the telephone numbers of the offices of the DEC Regional Attorneys as well as the telephone number of the OHMS Director of Mediation.

How much does mediation cost?

A mediator from OHMS is supplied without cost to the disputants.

Can I request mediation if I am in an administrative hearing?

Yes. Mindful that mediation must be consensual, parties to a permit or enforcement hearing may consent to mediation to resolve the environmental conflict. The ALJ assigned to the case is your point of contact. If the parties agree to mediation, the assigned ALJ will contact the OHMS Director of Mediation who will arrange to provide a mediator and convene the mediation at a time mutually agreeable to the parties.

What happens if mediation is unsuccessful?

People tend to evaluate negotiations in terms of success or failure. Sometimes mediation resolves part, but not all, of the dispute. But even if the mediation does not fully resolve a matter, it cannot be said to have been unsuccessful. Invariably, when entered into in good faith by all parties, mediation stimulates new thinking and a better understanding of positions. This information is often used to reach a settlement outside of the mediation. But even if the dispute must proceed to formal adjudication, the mediation effort will have sharpened the issues for any subsequent adjudicatory hearing, clearly identified what discovery the parties will need from one another, and greatly reduced the time and resources that must be committed by the parties in conducting the adjudicatory hearing.

Are mediations public?

Mediations are treated as highly sensitive negotiations. When the mediation commences, all caucuses are private and confidential. Since all parties enter the negotiation in good faith, there should be no unauthorized public disclosures. Leaks in negotiations can destroy trust and stymie productive negotiations. Information to be released to the press must be approved by disputants unless the mediator unilaterally prohibits the release of any information.

Are discussions in mediations confidential?

Yes. The general rule to be followed is that the mediation is a form of negotiation or settlement discussion. The Department has taken the position that the mediator's records are confidential and exempt from disclosure under the Freedom of Information Law (FOIL), at least where the mediator is an administrative law judge acting in an adjudicatory capacity. Moreover, DEC administrative law judges who act as mediators take additional precautions to maintain the confidentiality of mediated proceedings. Unless otherwise disclosable in an administrative hearing or court action, information from a mediation cannot be used or disclosed without permission of the parties.

Can I request your mediation services for matters that are not connected to a DEC action?

No. Mediations are used to resolve environmental disputes that involve a DEC permit, license, order, contract, or other matter pertaining to the authority and jurisdiction of DEC. Sometimes, however, instances arise where a dispute exists tangentially to a DEC action. One example is where permits from DEC are required for a project but other governmental permits are the major focus of the dispute. Those matters are evaluated on a case-by-case basis by the referring DEC authority and the OHMS Director of Mediation.

Mediation v. Litigation

Mediation

Litigation

Focuses on the parties' real interests

Focuses on litigation position

Information is shared early on as part of the problem-solving process

Information is exchanged as part of pre-hearing or hearing procedures; often extensive motion practice

Decisionmaking is by the parties to the dispute

Decisionmaking is by a disinterested third party

The parties design the procedures and processes to be followed

A rule-making tribunal establishes the procedures and processes to be followed